"Feser... has the rare and enviable gift of making philosophical argument compulsively readable" Sir Anthony Kenny, Times Literary Supplement

Selected for the First Things list of the 50 Best Blogs of 2010 (November 19, 2010)

Wednesday, March 13, 2013

Capital punishment lecture

This Friday,
March 15, I’ll be speaking at California State University, San Bernardino on
the topic “Is Capital Punishment Just?” Details
here.

(The short
answer, as my longtime readers know, is “Yes.”
I’ve discussed the issue on the blog and elsewhere many times, such as here, here,
here, here,
here,
here,
and here. But the talk on Friday will address some fundamental
issues about the grounds of punishment in general that are not discussed in
these earlier articles and posts.)

26 comments:

That's awesome. I studied at CSUSB for a year before I transferred to UCLA. The philosophy department there is excellent in my opinion and if some of the philosophers show up you will get some good comments. Maybe you will see the infamous Scot Zentner as well. Wish I could make it.

My problem with capital punishment isn't that it's unjustifiable, rather that our process is so flawed that there have been many put to death that later evidence (especially with the advent of DNA analysis) proving the culprit innocent.

My problem with capital punishment isn't that it's unjustifiable, rather that our process is so flawed that there have been many put to death that later evidence (especially with the advent of DNA analysis) proving the culprit innocent.

If DNA evidence is conclusive enough to have absolutely exonerated past accused, wouldn't that suggest that our ability to determine guilt has vastly improved from our past abilities?

I say this as someone who is largely anti-death-penalty on the general grounds that our government cannot be trusted with that power presently, and likely for the forseeable future for a number of reasons.

Whether or not capital punishment is permissible in principle, I'd be reluctant to be the fellow who administers it, either directly or indirectly. I wonder if this reluctance says something about the moral content of it all, perhaps a purely intellectual approach to these matters is inappropriate.

My heart cries out for mercy towards such a person, even though he might not deserve it.

I'm reminded of Augustine when he distinguished between the different consents, one intellectual, the other, moral. I could consent to capital punishment intellectually, but going through with my commitments, should they ever be required, is quite another matter.

I enjoyed the talk and was interested in the idea that a pain inflicted on a sinner can be thought of as replacing the pleasure that he received illicitly from his act. Also, that Five questions Guy seemed miffed with you (though I did kind of want to hear all of his questions).

I wonder whether this is the proper place to point out what seem to me to be two major gaps in David Oderberg's argument for capital punishment in Applied Ethics (pp. 144-181). Well, what the heck . .

His argument, in a nutshell, is that there must be a maximum crime or offense, that according to the principle of proportionality that maximal crime (whatever it is) deserves the maximal punishment, that the maximum punishment is death, and that therefore the maximal crime (whatever it is) deserves the punishment of death.

Now, unless I'm missing something, Oderberg has failed to establish two key points: (1) that death is "morally available" as a punishment at all, and (b) that the "scale of crimes" corresponds proportionally to the "scale of punishments."

As to (1), Oderberg does say a few words about forfeiture of rights, but I don't see that he ever argues that it's possible to forfeit one's right that other people not kill you. How do we know death is "on the menu" at all?

As to (2), for all that I can see, it's possible that there could be a punishment that was so heinous that it was out of proportion to every possible crime. Not all deaths are equally horrific, and surely being shot in the head and dying immediately is a less horrific death than being fed slowly through a wood chopper. Oderberg would rule out the latter punishment on good grounds, but if he's argued that death itself isn't ruled out on similar grounds, I've missed his argument.

Mind you, I'm not in principle opposed to capital punishment in principle (although I do have practical objections) and I think well of Oderberg. I'm simply pointing out what I think are holes in his argument.

"Slightly off topic, but I bet Oderberg would be willing to respond to your concerns if you'd send them to him via e-mail."

Thanks, that's a good point, and I may well drop him a line if I don't work it out for myself (possibly with the assistance of Oderberg readers here). But it's possible that I'm just missing something obvious or simple. And of course I'm not claiming the gap(s) can't be filled in, just that so far I don't see how Oderberg has done it. If someone else has followed his argument better than I have, I don't want to make him repeat himself; that's why he wrote the book, after all.

Since I'm posting, I'll add that an adequate answer to my first question would also answer the second; I'd suppose that in order to show that death is "morally available" as a punishment at all, it would be necessary (or at least helpful) to show that there must be some crime or offense deserving of it, else why would it be properly regarded as a "punishment" rather than just as something it was okay to do to people for some other reason?

By the way, I also know that Feser has addressed the question in other posts (linked above) and I accept his argument that death is (what I called) a "morally available" form of punishment proportional to some possible crime or offense.

My concern here is whether Oderberg provides adequate ground for it. It seems to me that in order to know that something even qualifies as a "punishment" at all, we have to know already that it does correspond to some crime to which it's a proportional response, and Oderberg's argument doesn't seem to me to establish that. His argument essentially asks, "What's the worst thing that could ever be done to a person?", and (so it appears to me) assumes that that "worst thing" can be regarded as a punishment even without knowing what it's a punishment for.

I suppose by implication I'm also asking, "Is Oderberg's argument quite as good as Feser's?" Feser's argument doesn't have the problem I think I'm seeing in Oderberg's, as Feser begins by arguing that there must be a level of criminality to which capital punishment is appropriate (and in parts of it even singles out the crime of murder as the obvious candidate for such a punishment, with which I wholeheartedly concur).

Scott, you're right. The scale of "evils that could be imposed on people" includes within it things that are not punishments available, things that are not even punishments, and things that though they might be available for God they are not available for us (which makes them hard to use for OUR understanding of punishment under natural law, for example). Torture, especially long drawn out torture, is an illicit form of treatment for us to impose even it it happened to be proportionate in degree of suffering. Raping the criminal is out of bounds for both us and for God - it is illicit absolutely and in principle. Subjecting someone to loss of heaven (eternal loss of God) is a punishment God can inflict but we cannot do so licitly. So, the realm of "what evils can we impose" is not in a tight correspondence to "what crimes can we punish for", there are evils that aren't punishments and there are evils that don't correspond to crimes we are going to punish for.

There is probably a "greatest licit punishment we can impose" considered generically, though it is hard to know whether a sentence of death after 30 years extremely hard labor is worse than a sentence of death in 10 minutes or in three days - it almost seems like subjectivity is an element that needs to be considered. But in order to formulate the notion of "greatest licit punishment" you have to first be able to say what is a licit punishment, and that itself will tell us whether death is available in principle.

For myself, I would be fine with imposing death in ALL premeditated murder cases, but giving partial reprieves for prisoners who volunteer to undergo gravely life-threatening situations for the common good. Running into burning buildings to save someone, or being volunteer test subjects for extremely difficult new surgical techniques, or stuff like that. If we could administer such a program without creating new injustices.

The late Card. Avery Dulles had an excellent article about the death penalty in the Church's Magisterium (available at First Things: http://www.firstthings.com/article/2008/08/catholicism-amp-capital-punishment-21).

The conclusion he reaches is that the present Church's teachings are actually quite limited: that the social situation of the present day makes it ill-advised for our apostate state to wield the sword.

Everyone seems to draw from this "Capital punishment is always and everywhere evil!!!" Yet this not only isn't what the Church teaches, it's flatly contrary to what the Church teaches.

Thanks very much for your well-considered reply. It seems, then, that there is a bit of a gap in Oderberg's argument, and a rather important one at that. (I think Feser fills it in and therefore, as I suggested, has the better argument in at least that respect.)

I like your idea of partial reprieves for convicted murderers who agree to risk death for the common good.

Capital punishment is ONLY acceptable when retributive justice demands it AND when the safety of society ALSO calls for the death penalty. In other words, retributive justice does not make capital punishment a necessary or even permissible punishment, but retributive justice AND safety of society does.

The objection continues on to say that as Christians we ought to avoid unnecessary violence, and that life in prison is the non violent alternative. In other words, safety of society is necessary and Christian, but retributive justice isn't necessary.

To use the objectors own terms "Who cares? A human life is of more value than 'rebalancing the cosmos'"

About Me

I am a writer and philosopher living in Los Angeles. I teach philosophy at Pasadena City College. My primary academic research interests are in the philosophy of mind, moral and political philosophy, and philosophy of religion. I also write on politics, from a conservative point of view; and on religion, from a traditional Roman Catholic perspective.